SAIDU HASSAN v. ALH. IBRAHIM BUNU & ANOR (2019)

SAIDU HASSAN v. ALH. IBRAHIM BUNU & ANOR

(2019)LCN/13410(CA)

In The Court of Appeal of Nigeria

On Friday, the 31st day of May, 2019

CA/J/226/2018

JUSTICES

UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria

HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria

TANI YUSUF HASSAN Justice of The Court of Appeal of Nigeria

Between

SAIDU HASSAN Appellant(s)

AND

1. ALH. IBRAHIM BUNU
(also called Baba Ibrahim Bunu)
2. HON. COMMISSIONER MINISTRY OF LAND & SURVEY, BORNO STATE Respondent(s)

RATIO

THE MEANING OF “COUNTER-CLAIM”

There are legions of authorities on the meaning and purport of a counter-claim. See: EFFIOM V. IRON BAR (2000) 1 NWLR (PT. 678) 341 where it was held thus-
“A counter-claim is an independent action and it needs not relate to or be in any way connected with the plaintiffs’ claim or raise out of the same transaction. It is not even analogous to the plaintiff’s claim. It need not be an action of the same nature as the original claim. A counterclaim is to be treated for all purposes for which justice requires it to be treated as an independent action.”
See also: OKONKWO V. C. C. B. (2003) FWLR (PT.154) 457 AT 508, where the nature of a counter-claim was clearly spelt out as follows:
“Counter-claim though related to the principal action is a separate and independent action and our adjectival Law requires that it must be filed separately. The separate and independent nature of a counter claim is borne out from the fact that it allows the defendant to maintain an action against the plaintiff as profitably as in a separate suit. It is a weapon of defence which enables the defendant to enforce a claim against the plaintiff as effectually as an independent action. As a matter of law a counter claim is a cross action with its separate pleadings, judgments and costs.”
See again: HASSAN V. REGD. TRUSTEES BAPTIST CONVENTION (1993) 7 NWLR (PT.308) 679 AT 690, wherein it was held that:-
“The fate of a counter claim being an independent action does not depend upon the outcome of the plaintiff’s claim. If the plaintiff’s case is dismissed, stayed or discontinued, the counter-claim may nevertheless be proceeded with.”
See also: OROJA & ORS V. ADENIYI & ORS (2017) LPELR ? 41985 (SC); OGBONNA V. AG OF IMO STATE & ORS. (1992) LPELR -2287 (SC); LOKPOBIRI V. OGOLA & ORS. (2015) LPELR ? 40838 (SC); MAOBISON INTER-LINK ASS. LTD. V. U.T.C. NIG. PLC.(2013) 9 NWLR (PT. 1359) 197; (2013) 10 SCM 112; (2013) 4 SCNJ 137; (2013) 3-4 SC (PT. 1) 109; (2013) ALL FWLR (PT. 594) 52; JERIC (NIG) LTD V. UBN PLC (2000) LPELR 1607 (SC); OBMIAMI BRICK & STONE NIG.LTD V. A. C.B. LTD. (1992) 3 NWLR (PT. 229) 260; DABUP V. KOLA (1993) 9 NWLR (PT. 317) 254.
The nature of a counter claim is therefore clear being a well established position of the law. Generally, negative effects or defects associated with the main claim in a suit, does not rob off on a counter claim which stands aloof. PER ONYEMENAM, J.C.A.

UCHECHUKWU ONYEMENAM, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the High Court of Borno State in Suit No: BOHC/MG/CV/89/11 delivered on 16th November; 2017 by P.H. Ngadda, J.

At the trial Court, the 1st Respondent had taken out a writ of summons against the Appellant and the 2nd Respondent as Defendants claiming the reliefs in his further amended statement of claim. See pages 7 and 24 of the record of appeal. After parties had exchanged and closed pleadings, hearing commenced.

The 1st Respondent testified and called one witness while the Appellant and the 2nd Respondent as Defendants, testified in their defence. In the course of proceedings, the learned trial Judge refused the 1st Respondent’s oral application for stay of proceedings pending an appeal against its ruling admitting in evidence as exhibit documents tendered by the Appellant. Thereafter the 1st Respondent filed an application for stay of proceedings in the Court of Appeal, and applied orally to the trial Court to stay proceedings but the Court refused the oral application following which the then Counsel to the 1st Respondent

Mr. A. J. Igoche, sought for and was granted leave to withdraw his appearance. The learned trial Judge proceeded with the 2nd Respondent’s witness, (DW2) while the 1st Respondent was then not represented. After DW2?s testimony, the suit was adjourned for address.

On the date the suit came up for address, the 1st Respondent filed an application to withdraw the suit which was not opposed but the Appellant and 2nd Respondent, rather they prayed for an order of dismissal of the 1st Respondent’s Claim. The Appellant equally sought to be allowed to proceed with his Counter-Claim. The learned trial Judge granted the application to withdraw the 1st Respondent’s claim, but refused to make an order of dismissal or striking out. He also refused to proceed with the hearing of the Appellant’s Counter-Claim.

The Appellant, being dissatisfied with the decision of the trial Court, filed this appeal on 29th November, 2017. After briefs were exchanged in line with the rules of this Court, appeal was heard on 4th April, 2019; wherein D.S. Saleh holding the brief of N.A. Dammo appeared for the Appellant; and M. U. Faruk Esq. represented the 1st Respondent. After the

Court was satisfied that the 2nd Respondent was on 22nd March, 2019 served with hearing notice for the day through Mr. Bulus Adamu DCL Ministry of Justice Borno State; this Court allowed the hearing of the appeal. Mr. Saleh adopted and relied on Appellant?s brief filed 22nd June, 2018 in urging the Court to allow the appeal. Mr. Faruk adopted and relied on 1st Respondent?s brief filed 25th September, 2018 in urging the Court to dismiss the appeal. The 2nd Respondent filed no brief.

In the Appellant?s brief Mr. N.A. Dammo of learned counsel raised a sole issue for determination,which issue is:
“Whether the Learned Trial Judge was right when he failed to make the order dismissing the 1st Respondent’s claims and proceeding with the Appellant’s CounterClaim.”

In the 1st Respondent?s brief, his learned counsel Mr. M. U. Faruk distilled two issues for determination. The issues are:
1. ?Having regard to the contents of the unchallenged affidavit in support of motion to discontinue the suit, is it a proper exercise of judicial discretion to dismiss the suit on an application to discontinue?
2. Whether it is

right for the learned trial Judge to continue with the counter claim when there is an allegation of bias against him

I have carefully considered the issues by both parties. The sole issue raised by the Appellant captures the grouse flowing from the grounds of appeal, but the issue is clumsy as a single issue so, I shall rephrase the sole issue as 2 issues to determine the appeal. Accordingly, I shall determine the appeal on the understated issues:
1. Whether the learned trial Judge was right when he failed to make order dismissing the 1st Respondent?s Claims after granting him the leave to withdraw Suit No. BOHC/MG/CV/89/2011.
2. Whether the trial Court was justified when he failed to proceed with the Appellant’s Counter-Claim after granting the 1st Respondent leave to withdraw Suit No. BOHC/MG/CV/89/2011.

SUBMISSIONS ON ISSUE
Whether the learned trial Judge was right when he failed to make order dismissing the 1st Respondent?s Claims after granting him the leave to withdraw Suit No.BOHC/MG/CV/89/2011.
?
Mr. Dammo the learned counsel for the Appellant noted that the learned trial Judge had, following the

application of the 1st Respondent to withdraw and or discontinue his claim, granted the application, but failed to make an order of either striking out or dismissing the suit. He referred to page 139 of the records. He further referred to Order 27 Rule 1 (3) of Borno State High Court (Civil Procedure) Rules, 2017; which provides for the right of a Claimant to withdraw or discontinue his suit; and the stage at which an application to withdraw could be made. He submitted that where hearing has commenced, as in the instant case, and an application for withdrawal or discontinuance is made, the order open to the trial Judge, is an order of dismissal. He cited: ERONINI V. IHEUKO (1989) 2 NWLR (PT. 101) 46; OBASI BROS. MERCHANT LTD. V. MERCHANT BANK OF AFRICA SECURITIES LTD (2005) ALL FWLR (PT. 201) 216; BABATUNDE V. P.A.S. & T.A. LTD. (2007) ALL FWLR (PT. 372) 1721; REGISTERED TRUSTEES OF IFELOJU FRIENDLY UNION V. KUKU (1991) 5 NWLR (PT. 189) 65; NIGERIA AIRWAYS LTD. V. LAPITE (1990) 7 NWLR (PT. 163) 392.

The learned counsel urged the Court to hold that the trial Court was in grave error when it failed to order the dismissal of the suit given that evidence

had been called by all parties and the trial had reached the stage of closure of the cases of the parties. He further urged that, the failure of the trial Court to dismiss the 1st Respondent’s claim occasioned a miscarriage of Justice to the Appellant.

For the 1st Respondent, Mr. Beneshiekh of counsel submitted on the options open to a trial Court when faced with an application for withdrawal and or discontinuation under Order 27 Rules 1 & 2 of the Borno State High Court Civil Procedure Rules 2017; in circumstances as in the instant case. He further submitted that the trial Court exercised its discretion judicially and judiciously when he granted leave to the 1st Respondent to discontinue or withdraw the proceedings in Suit No. BOHC/MG/CV/89/2011; and granted cost to the Appellant. He argued that an appellate Court will not normally set aside or interfere with the exercise of discretion of the trial Court once it is clear that it was exercised on just and legal reasoning that is judicially and judiciously invoked. He cited: IDOKO VS. OGBEIKWU (2003) F.W.L.R. (PT. 149)1530; ERONINI V. IHEUKO (1989) 2 NWLR (PT 101) 46; OBSERVATION OF GREEN M.R CITED IN

THE CASE OF IZIEME AND ORS VS. IJEOMA NDOKWU AND ORS (1976) 1 ALL NLR PG.189 @PG. 194 -195; BRAITHWAITE V. DALHATU (2016)13 NWLR (PT. 1528) 32.

He urged the Court to resolve the issue in favour of the 1st Respondent and against the Appellant, and dismiss the appeal, in the alternative order for re-trial.

RESOLUTION OF ISSUE 1
The good start point in the resolution of the issue is Order 27 of the High Court of Borno State (Civil Procedure) Rules, 2017. ORDER 27 provides:
1. (1) The Claimant may at any time before receipt of the defence or after the receipt thereof, before taking any other proceeding in the action, by notice in writing duly filed and served, wholly discontinue his claim against all or any of the Defendants or withdraw any part of his claim. He shall thereupon pay such Defendant?s cost of the action, or if the action be not wholly discontinued, the cost occasioned by the matter so withdrawn.
(2) A discontinuance or withdrawal as the case may be, shall not be a defence to any subsequent claim
(3) Where a defence has been filed, the Claimant may with the leave of a Judge discontinue the proceedings or any

part thereof on such terms and conditions as the Judge may order.
(4) Where proceeding have been stayed or struck out upon a Claimant?s withdrawal or discontinuance under this order no subsequent claim shall be filed by him on the same or substantially the same facts until the terms imposed on him by the Judge have been fully complied with.
(5) The Judge may in the like manner and like discretion as to terms, upon the application of a Defendant order the whole or any part of his alleged grounds of defence or counter claim to be withdrawn or struck out.
2. Where a cause is ready for trial, it may be withdrawn by either a Claimant or defendant upon producing to the Registrar a consent in writing signed by the parties and thereupon a Judge shall strike out the matter without the necessity of attendance of the parties or their Legal Practitioners.
By Order 27 Rule 1 (1)a Claimant can simply discontinue or withdraw his Claim wholly or in part by notice in writing filed and served, if he has not been served with the defence; or where if he has been served with the defence he has not taken further step in the action. In the circumstance

described above, the Claimant will pay the defendant(s) cost of the action, or where the withdrawal is in part, he shall pay the defendant the cost as a result of the withdrawal. By Order 27 Rule 1(3), where defence has been filed in Court, the Claimant shall require leave of the Court to withdraw or discontinue his action on such terms or order as the Court may deem fit. Order 27 Rule 1 (3) (supra) relates to where defence has been filed and served; and date for hearing has been fixed, which means further step has been taken after receiving the defence. By Order 27 Rule 2, when pleadings have been exchanged and issues properly joined paving way for hearing or trial to commence, either of the parties with the written consent of the other party can file such consent at the registry, whereupon the trial Judge shall strike out the action without having the parties or their counsel appear in Court. The order striking out a suit in the circumstance of Order 27 Rule 2 (supra) amounts to dismissal which will bar subsequent suit. The reason is that the parties have at that stage reached the point of litis contestio.
?Order 27 (supra) did not specifically provide for the

dismissal of an action upon withdrawal or discontinuance. Also, the Order is silent on withdrawal or discontinuance of an action where trial has commenced or evidence closed. The seeming distinction in Order 27 Rule 1 (1) and (3 ) dwells largely in the realm of when leave of Court will be required before a Claimant or Defendant can discontinue his Claim or Counter Claim respectively given the meaning of defence. A defence is a defendant?s declared rationale why the plaintiff or prosecutor has no valid case. A Claimant receives the defence only when it has been filed by the defendant and served on him and at which stage the Claimant requires leave of the trial Court to withdraw or discontinue his action. By Order 27 Rule 1 (2) (supra); any withdrawal or discontinuance under Order 27 Rule 1 (1) will not operate as estoppel in subsequent claim. This strongly implies that withdrawals and discontinuance after defence has been filed and received by the Claimant; and after the Claimant has taken further step in the action will operate as estoppel in a subsequent claim. So withdrawal under Order 27 Rule 1 (3) operates as estoppel in subsequent actions. This

understanding therefore gives an insight as to the nature of the order the trial Court is required to make when it grants leave for the discontinuance of a case by a party. I am of the strong view that where a trial Court grants leave to a Claimant to withdraw or discontinue his claim under Order 27 Rule 1 (1); the appropriate order to make is an order striking out the claim in which case the Claimant would be allowed subsequent suit, but when leave for withdrawal stems on Order 27 in that beyond the filing and serving of defence further step had been taken as where hearing has been fixed or hearing has commenced, then the right order for the trial Court to make in the circumstance is an order dismissing the claim in which case the Claimant will be estopped from any subsequent suit.
Flowing from the above therefore, I view that the combined reading of Order 27(supra) gives the trial Court a discretionary power to grant an applicant the leave to withdraw or discontinue an action where hearing has commenced and is at any stage but before judgment on such terms and conditions as the trial Court shall deem fit to make in the circumstance which terms

includes subsequent suit. See:ERONINI V. IHEUKO (1989) 2 NWLR. (PT. 101) 46. Although Order 27 did not provide for the actual order the Court faced with application for withdrawal should make, the order to be made by the Court outside the terms and conditions must having regard to the facts and circumstances of the case be judicial and judicious. That is to say that, Order 27 (supra) having left the order to be made by the trial Court at its discretion, the order to be made by the trial Court will depend on the peculiar facts and circumstances of the case having regards to the applicable principles of law. See:OKORODUDU V. OKOROMADU (1977) 3 SC. 21; RODRIGUES V. THE PUBLIC TRUSTEE (1977) 4 SC. 29; UNIVERSITY OF LAGOS V. AIGORO (1985) 1 S.C. 265, 271; UNIVERSITY OF LAGOS V. OLANIYAN (1985) 1 S.C. 295.
The 1st Respondent had applied to withdraw or discontinue his suit which application was predicated on Order 27 Rule 1 (3) of Borno State High Court (Civil Procedure) Rules, 2017. The application was brought at the stage when parties had closed their respective cases. The 1st Respondent’s former Counsel A.J. Igoche, had withdrawn his appearance following the

refusal of his application to stay proceedings. The suit had been adjourned for address. The Appellant and the 2nd Respondent had filed their final written addresses as ordered by the trial Court, and on the adjourned date for address, the 1st Respondent applied for the withdrawal of the suit. This was the stage of the case when the application to withdraw was granted.
The contention is whether the trial Court was right when after granting the 1st Respondent (Claimant) his application to discontinue, failed to either make an order striking out or dismissing the appeal. From my analysis of Order 27 (supra) above, it means in the herein case, the 1st Respondent had received the Appellant?s and 2nd Respondent?s defence and had gone ahead to lead evidence and closed his case before he applied for the withdrawal. So he had taken further steps after receiving the defence. It did not end there, the defence had also led evidence and even filled their written addresses which means issues had been properly joined and contested before the 1st Respondent applied to withdraw his case. The position of the law as led down by the Supreme Court is that:

“A case which has been withdrawn and subsequently struck out/dismissed when the point of litis contestio has been reached cannot be relisted for another bite at the cherry.
In other words, after briefs of argument have been exchanged by the parties whereby issue between them became crystallized litis contestio can be deemed to have been reached. A withdrawal from that point in time must, as an inflexible rule lead to the dismissal of the appeal.” See: Young Shall Grow Motors Ltd v Ambrose O. Okonkwo & Anor (2010) 3 SCNJ 396 at 409 ? 412. See also: SETRACO (NIG) LTD V. KPAJI (2017) LPELR ? 41560 (SC).
So in a situation like the instant appeal where the proceedings had reached address stage and addresses actually filed, the case had reached the point of litis contestio and as such a point of no return where the hand of the clock in the legal contest could not be turned back. The learned trial Judge was wrong when he just granted the 1st Respondent?s application for withdrawal and walked away without making an appropriate order which is an order dismissing the suit since the case had reached the point of litis contestio. See:

YOUNG SHALL GROW MOTORS LTD V AMBROSE O. OKONKWO & ANOR (2010) 3 SCNJ 396 AT 409 ? 412. SEE ALSO: SETRACO (NIG) LTD V. KPAJI (2017) LPELR ? 41560 (SC); KRAUS THOMPSON ORGANIZATION V NIPSS (2004) 17 NWLR (PT. 901) 44.
The learned counsel for the 1st Respondent argued that the application for discontinuance became necessary owing to the obvious likelihood of bias of the learned trial Judge which he itemized. The issue of the bias of the trial Court is not in issue before me but suffice it to say that in the event of likelihood of bias of the trial Court the right application the 1st Respondent ought to have made at that stage of trial coupled with the petition that had been written to the Chief Judge against the trial Judge for likelihood of bias, was an application for transfer of the suit to another Court to be heard by another Judge and not for leave to discontinue. Where as in this case the 1st Respondent on his own applied for withdrawal at an address stage for reason that the trial Court was biased rather than apply for the transfer of the suit to another Judge for trial, I hold that the 1st Respondent cannot be allowed to play with the

processes of the Court as the mood swings him irrespective of the plain, clear and unambiguous implications and the provisions of the law he had set out to utilize. The 1st Respondent who by motion on notice filed on 15th November, 2017 sought, pursuant to Order 27 Rule 1 (3) of the High Court of Borno State (Civil Procedure) Rules for leave to withdraw or discontinue Suit No. BOHC/MG/CV/89/2011; must sink and swim with what he had by his own volition activated. I place reliance on ABALOGU V. SHELL PETROLEUM DEVELOPMENT COMPANY LTD. (2003) 6 SCNJ 162 AT 284; SETRACO (NIG) LTD. V. KPAJI (2017) LPELR ? 41560 (SC).
On this note, I hold that the learned trial Judge was wrong when he failed to make order dismissing Suit No. BOHC/MG/CV/89/2011; after he granted the 1st Respondent leave to withdraw the referred suit in the circumstances of the case. On the final note, I resolve the issue in favour of the Appellant.

SUBMISSIONS ON ISSUE 2
Whether the trial Court was justified when he failed to proceed with theAppellant’s Counter-Claim after granting the 1st Respondent leave to withdraw Suit No. BOHC/MG/CV/89/2011.

Mr. Dammo learned

counsel for the Appellant noted that the Appellant raised a Counter-Claim, and when the trial Court granted leave to the 1st Respondent to withdraw his suit, it failed to proceed with the determination of the Appellant’s Counter-Claim. He submitted on the nature of a Counter- Claim, citing: ANOZIE V. A.G. LAGOS STATE (2012) ALL FWLR (PT. 631) 1522; EFFIOM V. IRONBAR (2000) 11 NWLR (PT. 678) 344; DABUP V. KOLO (1993) 12 SCNJ 1; IREKPITA V. FED. MORT FIN LTD. (2012) ALL FWLR (PT. 647) 784; YAKUBU V. U.B.A. PLC.(2012) ALL FWLR (PT. 611) 1468.

The learned counsel submitted that owing to the independent nature of a Counter Claim, the trial Court, having granted leave to the 1st Respondent to withdraw his suit, ought to have proceeded and determined the Appellant’s Counter-Claim, the same being independent of the 1st Respondent’s action. He added that such failure is a grave error that occasioned a miscarriage of Justice. He urged the Court to so hold and to further hold that in the circumstances by S.15 of the Court of Appeal Act, this Court has the powers to consider the Appellant’s Counter claim on the basis of the evidence on record and enter Judgment thereon.

He finally urged the Court to enter Judgment for the Appellant allowing the appeal and granting the reliefs sought.

In response, Mr. Beneshiekh learned counsel for the 1st Respondent referred to the records particularly page 102 line 10 to submit that; in view of the petition against the learned trial Judge by the 1st Respondent which hinged on bias, and the affidavit fact deposed to by the 1st respondent in support of motion for withdrawal which main reason is the allegation of bias against the trial Judge, the trial Court was right to disqualify itself in adjudicating the matter. He relied on: OBADARA & ORS. V. THE PRESIDENT, IBADAN WEST DISTRICT GRADE B CUSTOMARY COURT. (1964) 1 ALL NLRPG 336; SECRETARY, IWO CENTRAL LOCAL GOVERNMENT V. ADIO (2000) F.W.L.R. (PT 7) PG. 1142 @1176 – 1177.

He urged the Court to hold that the trial Court was right in not proceeding with the determination of the Appellant?s Counter Claim. He further urged the Court to dismiss the appeal since both parties have the right to institute fresh action against their respective claim or in the alternative order for retrial before another judge of the High Court

RESOLUTION OF ISSUE 2
There are legions of authorities on the meaning and purport of a counter-claim. See: EFFIOM V. IRON BAR (2000) 1 NWLR (PT. 678) 341 where it was held thus-
“A counter-claim is an independent action and it needs not relate to or be in any way connected with the plaintiffs’ claim or raise out of the same transaction. It is not even analogous to the plaintiff’s claim. It need not be an action of the same nature as the original claim. A counterclaim is to be treated for all purposes for which justice requires it to be treated as an independent action.”
See also: OKONKWO V. C. C. B. (2003) FWLR (PT.154) 457 AT 508, where the nature of a counter-claim was clearly spelt out as follows:
“Counter-claim though related to the principal action is a separate and independent action and our adjectival Law requires that it must be filed separately. The separate and independent nature of a counter claim is borne out from the fact that it allows the defendant to maintain an action against the plaintiff as profitably as in a separate suit. It is a weapon of defence which enables the defendant to enforce a claim against the

plaintiff as effectually as an independent action. As a matter of law a counter claim is a cross action with its separate pleadings, judgments and costs.”
See again: HASSAN V. REGD. TRUSTEES BAPTIST CONVENTION (1993) 7 NWLR (PT.308) 679 AT 690, wherein it was held that:-
“The fate of a counter claim being an independent action does not depend upon the outcome of the plaintiff’s claim. If the plaintiff’s case is dismissed, stayed or discontinued, the counter-claim may nevertheless be proceeded with.”
See also: OROJA & ORS V. ADENIYI & ORS (2017) LPELR ? 41985 (SC); OGBONNA V. AG OF IMO STATE & ORS. (1992) LPELR -2287 (SC); LOKPOBIRI V. OGOLA & ORS. (2015) LPELR ? 40838 (SC); MAOBISON INTER-LINK ASS. LTD. V. U.T.C. NIG. PLC.(2013) 9 NWLR (PT. 1359) 197; (2013) 10 SCM 112; (2013) 4 SCNJ 137; (2013) 3-4 SC (PT. 1) 109; (2013) ALL FWLR (PT. 594) 52; JERIC (NIG) LTD V. UBN PLC (2000) LPELR 1607 (SC); OBMIAMI BRICK & STONE NIG.LTD V. A. C.B. LTD. (1992) 3 NWLR (PT. 229) 260; DABUP V. KOLA (1993) 9 NWLR (PT. 317) 254.
The nature of a counter claim is therefore clear being a well established position of the law.

Generally, negative effects or defects associated with the main claim in a suit, does not rob off on a counter claim which stands aloof.

It is on this ground that the Appellant has rightly contended that the trial Judge was in error when it failed to proceed with the determination of the Counter Claim after leave was granted the 1st Respondent to discontinue with the main claim. However, in the case at hand it is not in dispute that there was a petition against the learned trial Judge by the 1st Respondent alleging bias. Also and more significantly, is the affidavit evidence in support of the 1st Respondent?s application to withdraw his claim, and the ground for the application. See: paragraph 5 of the Grounds for the application at page 128; paragraphs 3 (bb), (c), (cc), 4,5 and 6 of the affidavit in support of the application to withdraw. The 1st Respondent in the above referred paragraphs alleged bias against the learned trial Judge and particularized it in strong terms that it would have been out of place for the learned trial Judge not to disqualify himself but to proceed in the determination of the Counter Claim after granting the 1st Respondent

leave to withdraw the main claim. In the circumstances of the case therefore, the learned trial Judge was right not to determine the Counter claim even though it is a separate action unconnected to the 1st Respondent?s claim. Having said that, although I have held that the learned trial Judge was right not to proceed with the determination of the Counter Claim, the right step for the trial Court to have taken after granting leave to the 1st Respondent to discontinue with the main claim was to transfer the counter claim to the Chief Judge of Borno State for reassignment to another Judge of the High Court for hearing and determination.

Accordingly, I answer the question raised under this issue in favour of the 1st Respondent.

In all therefore, the appeal succeeds partially and is to the extent of my resolution of issue 1 allowed. Consequentially I make Order as follows:
1. I hereby dismiss SUIT NO. BOHC/MG/CV/89/2011 as to the main claim.
2. I remit the Counter Claim in SUIT NO. BOHC/MG/CV/89/2011 to the Chief Judge of Borno State to be assigned to another Judge of the jurisdiction for hearing and determination.
3. I make no other as to cost.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the lead judgment delivered by my learned brother, Uchechukwu Onyemenam, JCA. His Lordship has ably considered and resolved the issues in contention in the appeal. I agree with the reasoning and abide by the conclusion reached therein.

TANI YUSUF HASSAN, J.C.A.: I have had the benefit of reading in draft, the lead judgment of my learned brother, UCHECHUKWU ONYEMENAM, JCA. I agree with the conclusion reached therein.

Appearances:

D. Saleh holding the brief of N.A. DammoFor Appellant(s)

M.U Faruk for 1st Respondent.For Respondent(s)

Appearances

D. Saleh holding the brief of N.A. DammoFor Appellant

AND

M.U Faruk for 1st Respondent.For Respondent